OP-ED CONTRIBUTOR; Blagojevich and Legal Bribery

By SCOTT TUROW

Published: August 18, 2010

Chicago

IN May 1980, during the height of the movement to add an Equal Rights Amendment for women to the Constitution, an activist named Wanda Brandstetter delivered a note to Nord Swanstrom, an Illinois state representative. ''Mr. Swanstrom,'' it said, ''the offer to help in your election and $1,000 for your campaign for pro-E.R.A. vote.'' Things did not go as Ms. Brandstetter hoped. The measure was never ratified by the Legislature, while her offer of $1,000 lead directly to her conviction for bribery in the Illinois courts.

Since Ms. Brandstetter's case, it has been clear in Illinois (and eventually in the federal courts too) that, notwithstanding the First Amendment protections the Supreme Court has applied to political contributions, prosecutions for bribery and extortion may be brought when a donation is tied directly to a specific act by an elected official.

So, people are right to wonder how the jury in the trial of Rod Blagojevich, the former governor of Illinois, could possibly be unable to come up with a verdict on any bribery-related charges, finding Mr. Blagojevich guilty only of lying to federal agents when he characterized himself in 2005 as uninvolved in political fundraising.

After all, government wiretaps revealed Mr. Blagojevich threatening not to sign legislation beneficial to the harness racing industry unless he received a $100,000 campaign donation from one race track executive. He even threatened to hold up an increase in state Medicaid reimbursements for pediatric cases until the chief executive of Illinois's leading children's hospital contributed $50,000.

Yet the unwillingness of one or more jurors to convict Mr. Blagojevich of anything but bare-faced lying makes some sense. I suspect the jury's indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

For example, in June 2009, the court decided a case involving Massey Coal and its chief executive, Joe Blankenship. (Coincidentally, Massey was the operator of a coal mine in West Virginia that exploded in April, killing 29 miners.) In 2004, after Massey had lost a $50-million fraud verdict to a rival coal company, Mr. Blankenship spent $3 million supporting the successful candidacy of Brent Benjamin to the West Virginia Supreme Court of Appeals, where Massey's challenge of the fraud verdict was going to be heard.

Although Mr. Blankenship's spending eclipsed the contributions of all of Judge Benjamin's other donors put together, the judge subsequently refused to remove himself from Massey's appeal. Unsurprisingly, the court voted to overturn the verdict against Massey, with Judge Benjamin providing the deciding vote.

The case eventually came to the United States Supreme Court, which by a 5-to-4 vote decided Justice Benjamin should have recused himself because of the ''disproportionate'' influence Mr. Blankenship's money had in the election. Nonetheless, the court pointedly refused to require the same from other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them.

Moreover, the court appeared persuaded that nothing criminal had occurred, even though its ruling concluded that it was ''reasonably foreseeable'' at the time that Mr. Benjamin would decide the Massey case and that Mr. Blankenship had a ''vested interest'' when he spent the money. Given that logic, who can blame Mr. Blagojevich -- or Wanda Brandstetter -- for asking, ''Why me?''

Despite such cases, which demonstrate the obvious perils when public officials become the beneficiaries of campaign largesse from those with business before them, the Supreme Court last January said that the First Amendment required erasing the decades-old federal ban on independent campaign spending by corporations and unions on the eve of elections.

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

The future of other campaign finance restrictions looks bleak. Thirty-six years ago, when the Supreme Court first declared in Buckley v. Valeo that the First Amendment protected election spending, it nonetheless approved contribution limits ''to prevent ... the appearance of corruption.'' In Citizens United, the Roberts Court gave short shrift to any concern about appearances. Limits on direct contributions to candidates appear likely to be the next campaign safeguard to fall.

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court's elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying. Only those as naive as Wanda Brandstetter or as crass and ham-handed as Rod Blagojevich find themselves subject to prosecution, while others wise enough to say less out loud find snug protection in the First Amendment, no matter how bald their desire to influence government actions.

With all respect to Wanda Brandstetter, the Constitutional amendment this nation most urgently requires is one that reverses the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?